February 16, 2008

It's Not About Us

by hilzoy

Presumably, everyone has already heard about the showdown over the Protect America Act (aka the bill amending FISA.) Bush insists on immunity for telecoms, and threatens to veto any bill that doesn't contain it; the Senate caves; the House stands up to Bush and lets the changes to FISA expire. Bush sputtered ineffectually about the horrid dangers the Democrats are exposing us all to:

"Mr. Bush accused the House Democrats of putting the nation’s security at risk by refusing to extend the administration’s surveillance authority, including immunity from lawsuits for the telecommunications companies, which the Senate approved Tuesday.

House Democrats, in turn, accused the president of needlessly frightening the American people and insisted that intelligence agencies would still have every ability to monitor terrorism suspects if a temporary surveillance authority lapsed at midnight Saturday. The Democrats noted that the underlying law, the Foreign Intelligence Surveillance Act, would remain in force."

I thought it was great that the House Democrats finally stood up to Bush's bullying. Oddly enough, right-wing bloggers disagreed. Powerline:

"Over the last 36 hours, Congressional Democrats have again demonstrated a casual, even frivolous attitude toward their Constitutional duty to assist in keeping Americans safe from attack. (...)

Now, here is an investigation that would actually be worth pursuing: why did Nancy Pelosi and her House leadership refuse to take up the FISA reform bill? Did they deliberately sacrifice the security of Americans to placate their far-left base? Or was there a corrupt bargain with major Democratic Party contributors, who hope to make millions by suing telecoms? Did Nancy Pelosi politicize our national security by subordinating the security interests of all Americans to the financial interests of the Democratic Party's biggest contributors?"

"The bill absolutely must be passed by the House or our foreign intelligence collection is going to collapse. It would be unconscionable for Democrats to allow that to happen while our nation confronts an enemy hell-bent on reprising 9/11 and while we have 200,000 men and women in uniform relying on the continuing flow of information from our intelligence services.

Well it looks like the unconscionable is about to occur. I am hearing from several sources that the House is planning to recess on Friday without taking up the Senate bill. That would mean the lapse of our surveillance authority at midnight.

This is a game of roulette with our national security (...) This is not politics, folks. For grown-ups, this is life and death."

(Um, no: every order now in place stays in place for a year, and any time the government wants to target someone new, all they have to do is get a warrant from the incredibly compliant FISA court.)

This rather understandably leads Kevin Drum to ask why, if this is all so vitally important and our national security depends on it, the President is not prepared to sign the bill unless it includes immunity for telecoms. John Cole is blunter: "why are they lying?"

The argument in favor of telecom immunity is that companies will not be willing to cooperate with the government if they are exposed to lawsuits. The arguments against this position are legion, but they basically boil down to the question: if the telecoms did, in fact, break the law, and did so despite having very good legal departments to advise them, why on earth should they not be liable for this? And why would we want to remove the only incentive any company has not to break the law when the Executive tells them to, by setting this kind of precedent? You'd think Congress actually wanted the President to be able to get corporations to break the law at will.

However, suppose for a moment that you are moved by the plight of the telecoms. What I didn't know until I surfed over to The Plank is that there was an amendment to the bill that would have taken care of these concerns without sacrificing the rule of law:

"There was an ideal solution to this problem: the Specter–Whitehouse substitution amendment, which would have allowed lawsuits to go forward but would have substituted the United States as a defendant, letting the telecoms off the hook. But the administration, Senate Republicans, and a handful of Democrats conspired to kill this amendment. The primary reason the Bush administration wants immunity isn't to help out its telecom friends, but to prevent the details of the wiretapping program from being scrutinized--even confidentally--in a lawsuit, regardless of who the defendant is.

Indeed, though my view is that House Democrats did the right thing by standing firm and letting the Protect America Act expire, they also deserve credit for making a good-faith effort to compromise on the issue--first by passing temporary FISA fixes, and then by supporting amendments like Specter–Whitehouse. But the fact that Bush was willing to let the law expire rather than compromise is telling--if reforming FISA isn't important enough for Bush to sacrifice immunity, then there's no reason for Democrats to unilaterally give in."

Here's the roll call on this amendment. Every single Republican except for Arlen Specter (and Lindsey Graham, who was absent) voted against it. Every single one.

At the end of the post in The Plank, Josh Patashnik (its author) quotes Sen. Kennedy:

"Think about what we’ve been hearing from the White House in this debate. The President has said that American lives will be sacrificed if Congress does not change FISA. But he has also said that he will veto any FISA bill that does not grant retroactive immunity. No immunity, no new FISA bill. So if we take the President at his word, he is willing to let Americans die to protect the phone companies."

But I don't think that's right. The Republicans could have had all the changes to FISA without telecom immunity, but Bush said he would veto that, and the Republicans in Congress voted it down. But they could also have let the telecoms off the hook but let the lawsuits go forward. They rejected that as well. I think Kennedy is wrong and Josh Patashnik is right: "The primary reason the Bush administration wants immunity isn't to help out its telecom friends, but to prevent the details of the wiretapping program from being scrutinized--even confidentally--in a lawsuit, regardless of who the defendant is."

Comments

"The argument in favor of telecom immunity is that companies will not be willing to cooperate with the government if they are exposed to lawsuits."

I have to disagree, and say that this is framing the argument the way Bush and the Republicans want it framed.

The actual argument in favor of telecom immunity is that companies will not be willing to cooperate with the government when the government makes illegal requests, if they are exposed to lawsuits over violating the law.

There's no argument whatever that the telecoms haven't in the past, won't now, or won't in future, comply with legal requests from the government.

The whole point of this is that Bush is insisting that companies have to be protected from being punished if they engage in criminal acts. And that's the only thing he's asking they be protected from.

Legal requests from the government have never been a problem.

Any other framing that doesn't put this first is, I think, getting it wrong. It's swallowing the Bush claims as an assumption. Just saying "companies will not be willing to cooperate with the government" is, well, perpetuating a Big Lie.

Oh yes it is. Just a very small, tiny little number of Americans: the ones who will be prosecuted for making illegal requests of the telecoms to wiretap without a warrant, and the ones who cooperated with the illegal requests from the government to wiretap without a warrant. But although these Americans Bush wants to protect are small in number, they are also the Americans Bush considers it important to protect: at the head of the list is Bush himself.

As for John Cole's question, it's astonishing to me that he's asking it, and it's astonishing to me that Kevin Drum is still playing the gosh-wow naive card: they're lying because they expect that to be a working defense, and why not? So far, it always has been.

Bush confessed late in 2006 to having committed these crimes. We've known since May 2007 that the illegal wiretapping program that Bush confessed to was the replacement for a wiretapping program that was so illegal that neither John Ashcroft nor James Comey would sign off on it. Yet there was no move to impeach Bush, or Cheney: the remaining Republicans in the Senate, it was agreed, would never consent to have a Republican President impeached for his crimes, so nothing could be done.

Bush and Cheney have set the standard: the executive branch is above the law. They can't be called to account for their actions, and they can do as they please. That's not hyperbole, is it? Just a plain statement of fact.

As a sidelight, consider the Orwellian title of the bill: the "Protect America Act." I still occasionally get the dry heaves when I think of the "PATRIOT Act" acronym, now this. D'oh, how could one not vote for either?

I tend to agree this is more about shielding disclosure of blatently illegal administration wiretapping than telecom immunity. But the real source of Bush's sputtering may be simpler still: he's going into meltdown simply because he's being told "no."

Just my opinion, of course, but I think that the most important thing, in the minds* of President Bush, VP Cheney and the rest of his regime, that the FISA "showdown" is about is the danger to themselves. Ever since 9/11, this Adminstration
has used the public's freakout over "terrorism" as a cloak for the implementation of their "Unitary Executive" theories, i.e. that the President of the US ought to be an unaccountable autocrat, and above the law. Or, more precisely, in the case of their surveillance programs, able to interpret the law (as long as the military or "national security" can be cited as an excuse) via his own whim; courts, Congress, and the Constitution be damned.

Finally, (late and inadequately, IMO; but better than nothing) someone has called Bush on his hysterical BS, and, in the true manner of petty tyrants everywhere, he's thrown a tantrum.

What's next? A shutdown of intelligence-gathering if he doesn't get his way?

I think CharleyCarp said it best, people who truly believe in their legal theories don't duck every single chance they get to have them validated in a court of law. With a few exceptions, that's exactly what the Bush administration has done, they don't believe their own bullsh!t (OK, maybe Cheney and Addington do). Hence the constant assertion of the state secrets doctrine, the refusal to testify before congress based on farcical claims of privilege, the destruction of evidence by the White House and CIA (and I'm sure just about every other federal agency), etc. etc. etc.

I forget whether it was Cheney or someone else who was quoted as saying "We're going to push and push and push until some larger force makes us stop." They're interested only in their own power, and so far, there's been no larger force. You watch the absolute fncking over they'll do to U.S. interests in Nov/Dec/Jan if Obama or Clinton wins the presidency, it will be historic.

"The primary reason the Bush administration wants immunity isn't to help out its telecom friends, but to prevent the details of the wiretapping program from being scrutinized--even confidentally--in a lawsuit, regardless of who the defendant is."

Which makes the cave-in of so many Senate Democrats all the more appalling and unforgivable.

Immunity is to keep anyone who doesn't already know from finding out the extent and nature of the spying that's been done on Americans by this administration. And to keep the regime's sorry asses out of jail.

Andy McCarthy is a pretty sharp cookie. He was the US Prosecutor assigned by the Bush Administration to prosecute Sheik Omar Abdel Rahman. His goal was to prove that the Sheik’s ‘terrorist’ policy positions were incompatible with Islamic teachings and convict him based on false claims. In the process of making his case, McCarthy read the books and had a change of heart.

McCarthy was a late-comer to Romney’s campaign and is responsible for Romney moving his talking points from “global Jihad” to a system seeking to “take down all civilization”.

While McCarthy’s heart is in the right place on this one, I respectfully disagree with him (good technical points Hilzoy):

“(2) VIOLENT RADICALIZATION- The term `violent radicalization' means the process of adopting or promoting an extremist belief system for the purpose of facilitating ideologically based violence to advance political, religious, or social change.”
-H.R. 1955: Violent Radicalization and Homegrown Terrorism Prevention Act of 2007
…
“To these would be opposed a militia amounting to near half a million citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties and united and conducted by governments possessing their affections and confidence.”
-James Madison, Violent Radical

Because James Madison is one of my heroes, certain late night ramblings, and all of my purchases, duly registered with the Bureau of Alcohol, Tobacco, and Firearms, I may be a violent radical as well. Creepy.

The surveillance program is nothing more or less than the Huston plan, which was designed in 1970 by Tom Charles Huston, an aide to Richard Nixon.

When first proposed, the Huston plan caused a failure of nerve; but (like all such things) when proposed for the second time, it just seemed like the natural thing to do.

If Richard Nixon had gone to prison, none of this would be happening. But he was seen to escape punishment and to fail to punish is to endorse.

No one should be surprised that the current surveillance program began less than three weeks after the inauguration of George W. Bush. It was literally his administration's first priority.

It is unseemly for any Republican or "conservative" to deny this, because they are proud of it. The reflex to deny it is the tiny remnant of 1970's failure of nerve.

But even if the stated rationale and practice of the program were correct, retroactive immunity would still be 1) unconstitutional (ex post facto) and 2) tantamount to a perpetual get-out-of-jail-free card to all businesses for any wrongdoing.

The rule of law cannot be incrementally restored. There will have to be a total break of institutional continuity.

"The surveillance program is nothing more or less than the Huston plan"

This is not the way I'd phrase it. The Huston plan, while utterly criminal and breathtakingly unprecedented in its sweep, and including various covert sabotage/operations aspects not duplicated in the "TSP," was a set of penny-ante and isolated, if astonishingly criminal, propositions in comparison to the datamining of everyone in America, and trying to get feeds from every internet main pipe in creation.

The technological differences alone make comparisons almost useless, but unless the Huston plan could have somehow encompassed some level of monitoring the phones and communications of every American, and all communications in and out of the country -- which it didn't -- it doesn't really compare at all. And in the reverse direction, it was purely political, in a way the TSP isn't (though it could be turned that way easily enhough, or possibly piggybacked onto, or pointed at times at political targets).

I appreciate the comparison you're trying to make, but the Bush endeavors, while not provably directed at any political opponents, or primarily directed at that purpose, so far as our current information and awareness goess, are incomparably vaster and more sweeping, and far more dangerous in their precedents, since once the precedents are granted, it's no effort at all to add on, assuming there's no piggy-backing of any sort already, Huston-type political and covert ops elements.

Otherwise, I take no issue with your argument. I just want to clarify the scale of differences between the "TSP" and the Huston Plan.

I think there's a political angle to this that people are missing. The other reason to do it is just to have the staged walkout, just to have Bush show up on the nightly news to excoriate the Democrats for risking the lives of Americans.

I think they are in part motivated to manufacture a showdown just for the political spectacle of it.

The new thing is the result of the Huston Plan being rethought over thirty years of technological evolution. Its purposes are exactly the same: it has neither fewer nor additional purposes. Specifically, terrorism has nothing to do with it, except as a wonderful fortuitous pretext. It is your phone and mine that have been tapped. No one in the Bush administration knows or cares where any terrorists are.

I don't even get the president's own logic. "Without this protection, without this liability shield, we may not be able to secure the private sector's cooperation with our intelligence efforts." The bill protects specifically communications companies for between 9/11/2001 and 1/17/2008. How would that encourage the private sector's cooperation? That cooperation, illegal or not, has already occurred. So, like, when the government knocks on my door tomorrow and wants me to spy on my neighbors, what in this law will encourage me to do so?

The Rovian White House’s domestic preoccupation with its own perpetuity, its putsch if you will, is directed conspicuously at its opponents, both Democrat and uncooperative Republican: And that attack everywhere attempts subversion of laws as unruly impediments.
It begins to appear that Rep. Conyers and his committee may be rising to push the obstructions aside and fulfill their appointed office.
In short the motive driving them headlong is corruptly political, not at all unlike Nixon: and demanding the same response, without amnesty.

concerning Frank Wilhoit at 5:47
Retroactive immunity is not unconstitutional, retroactive criminalization is. The general principle is that "favors" can be legally granted retroactively but not punishments (the same way that taxes can be rebated but not retroactively introduced).
It may be unsavoury but not illegal.